Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORPORATION, ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

No. 98-168C Judge Francis M. Allegra

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE FROM THE OCTOBER 7, 2004 EVIDENTIARY HEARING TESTIMONY AND OTHER EVIDENCE REGARDING A POLYGRAPH EXAM OF DEBRA REESE Plaintiff, North Star Alaska Housing Corporation ("North Star") hereby opposes the Government's Motion in Limine to exclude evidence respecting a polygraph examination administered to North Star employee Debra Reese respecting her observations of document shredding by Government officials on the afternoon of August 17, 2004. 1 The Court of Federal Claims has ruled that it is not error to admit evidence of a witness's truthfulness derived from administration of a private polygraph test. See Milas v. United States, 42 Fed. Cl. 704 (Ct. Fed. Cl. 1999). In Milas, the Court found that the Board for Correction of Naval Records did not err in its decision to admit evidence of a witness's truthfulness determined through a private polygraph test, which the Board weighed in relation to its assessment of the reliability of such evidence. See id. at 714. Thus, pursuant to Milas, questions about the reliability of polygraph evidence sought to be introduced in the Court of Federal Claims do not

The evidentiary hearing to which the Government's motion applies is no longer scheduled for October 7, 2004, and has been rescheduled for November 12, 2004.

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warrant exclusion of such evidence. Rather, the accepted procedure is for the Court to admit the evidence and assign it the weight that the Court deems appropriate. After the Supreme Court's seminal ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), admission of polygraph evidence is subjected to the same standards as admission of other expert testimony and evidence. Daubert reversed decades of practice during which polygraph evidence was automatically excluded pursuant to Frye v. United States, 54 App. D.C. 46, 293 F.1013 (D.C. Cir. 1923). Today, courts primarily analyze the extent to which the proffered evidence is sufficiently reliable so as to be admissible as scientific, technical, or other specialized knowledge; and the extent to which the evidence is relevant such that it will assist the trier of fact. See United States v. Posado, 57 F.3d 428, 429 (5th Cir. 1995). Inquiries into the extent to which the proffered evidence is more probative than prejudicial are also common. See id. at 435. Here, each of these inquiries leads to the conclusion that the polygraph evidence of Ms. Reese's truthfulness should be admitted at the evidentiary hearing. Posado concerned the admissibility of polygraph evidence in a pretrial hearing to suppress evidence respecting a drug seizure in criminal proceedings. The Fifth Circuit reversed the district court's automatic exclusion of polygraph evidence because "[a]fter Daubert, a per se rule is not viable" and "[c]urrent research indicates that, when given under controlled conditions, polygraph technique accurately predicts truth or deception between seventy and ninety percent of the time." Posado, 57 F.3d at 433, 434. Relying on Posado, a district court admitted polygraph results into evidence in a dispute between an insurance company and insured respecting the cause of a fire, in which the insured underwent polygraph examinations to corroborate their denial in causing the fire. See Ulmer v. State Farm Fire & Casualty Co., 897 F.Supp. 299 (W.D. La. 1995).

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With respect to reliability, the Ulmer court found that "polygraph theory and technique have been tested, have been subject to peer review and extensive publication, and have been shown to have a not unreasonable potential rate of error." Id. at 303 (citing Posado, 57 F.3d at 434). The court rejected the insurance company's argument ­ which mirrors the Government's ­ that the polygraph evidence was not reliable because the only witness who was listed to testify about it was the certified polygraphist who conducted the test. Ulmer, 897 F.Supp. at 302-03. With respect to relevance, the Ulmer court found that "valid polygraph evidence will always be relevant if it tends to support or undermine the credibility of a witness whose version of events is contested at trial." Id. at 301-02. With respect to the probative value of the evidence, the Court considered three factors derived from the Posado decision: (1) the circumstances surrounding administration of the exam, such as whether both sides have a risk in the outcome of the exam; (2) the occasion and forum in which the polygraph evidence is sought to be introduced, finding that introduction at a pre-trial hearing before a judge as opposed to a trial before a jury substantially reduced the risk of unfair prejudice; and (3) the need for polygraph evidence, such as whether the evidence helps clarify whether competing versions of a contested event or fact is true. Id. at 302. The court concluded that the polygraph results were admissible evidence. Id. at 304.2 The polygraphist who examined Ms. Reese, Ricardo Hernandez, will provide testimony respecting the reliability of polygraph evidence based on his training and years of experience. The relevance of such evidence is clear, particularly here where the Court is faced with

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The Ulmer court was persuaded by the qualifications of the polygraphist in its finding that the polygraph evidence was sufficiently reliable and sufficiently relevant. Here, polygraphist Ricardo Hernandez has over 20 years of experience administering polygraph exams, served in law enforcement from 1974 until 1992, and will testify as to his training and experience in both public service and private practice.

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competing versions of the same story. See Walther v. O'Connell, 72 Misc. 2d 316, 339 N.Y.S.2d 386 (N.Y. Civ. Ct. 1972) (finding that the case presented an ideal situation for polygraph tests because the testimony before the court was "diametrically opposed.").3 Moreover, the probative value of the evidence outweighs any prejudicial effect pursuant to the three-part test outlined in Ulmer. First, North Star was at risk with respect to the outcome of the exam, which was administered after the Court scheduled an evidentiary hearing in this matter and warned the parties that "if we go down these roads any more with these types of sort of satellite aspects of this case . . . we are going to go all the way down the road." See Transcript of September 1, 2004 Hearing, p. 11. Second, because the polygraph evidence is being offered in a pre-trial civil matter before a judge, there is no risk that the evidence will be accorded an inappropriate weight by a jury. And, third, because different versions of the events of August 17, 2004 are set forth in North Star and the Government's affidavits, this is precisely the type of case in which polygraph evidence is most useful to the trier of fact. See Walther, 72 Misc. at 316, 339 N.Y.S.2d at 386. The Government appears to base its argument in favor of exclusion of polygraph evidence of Ms. Reese's truthfulness on North Star's anticipated failure to satisfy the Court's Daubert inquiry into the reliability and relevance of the polygraph evidence it intends to introduce. Not surprisingly, the Government has found no support for the proposition that polygraph evidence should be anticipatorily excluded based on an opposing party's prediction that the Daubert inquiry will not be satisfied.4
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In Walther, the Court ordered both sides to undergo polygraph examinations. The Government's reliance on United States v. Scheffer, 523 U.S. 303 (1998) is misplaced, as that case concerns the constitutionality of a military evidentiary rule that acts to exclude polygraph evidence from criminal court martial proceedings. Moreover, contrary to the Government's implication, North Star is not seeking to introduce the "raw results" of the polygraph exam but, rather, the "expert opinion testimony of the polygrapher about whether the subject was truthful or deceptive in answering questions," as contemplated by the Supreme Court. Scheffer, 523 U.S. at 317 n. 13. The Government also does not advance its position in its reliance on United States v. Cordoba, 194 F.3d 1053 (9th Cir. 1999). There, a defendant caught with cocaine in his van raised lack of
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For all the reasons set forth above, the Government's Motion in Limine should be denied and North Star should be permitted to introduce the curriculum vitae of polygraphist, Ricardo Hernandez, the polygraph results of Debra Reese, and to call Mr. Hernandez as a witness.

DATED:

October 15, 2004

Respectfully submitted, s/ Paul W. Killian ____________________________________ PAUL W. KILLIAN Akin Gump Strauss Hauer & Feld, L.L.P. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 887-4000

knowledge as a defense, and took a private polygraph exam to bolster his claims. When the district court excluded the evidence per se, the Ninth Circuit reversed, because after Daubert, polygraph evidence could not be automatically excluded. See Cordoba, 194 F.3d at 1056. After remand, the district court's decision to exclude polygraph evidence was upheld only after it made a particularized inquiry into the admissibility of the evidence proffered in that particular case. Id. at1063. The district court considered several factors in its decision, including the fact that the polygraph exam was administered in a way glaringly inconsistent with industry standards, and that the evidence was being proffered in a jury trial and ran a risk of prejudice. Id. at 1062-63. None of these factors are present here. Finally, Maryland Casualty Co. v. Therm-O-Disc, Inc., 137 F.3d 780 (4th Cir. 1998) stands for the unremarkable proposition that North Star has the burden of showing that the polygraphist will testify based on his scientific knowledge and will provide evidence which will assist the trier of fact. Mr. Hernandez will do just that.

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Opposition to Defendant's Motion in Limine to Exclude from the October 7, 2004 Evidentiary Hearing Testimony and Other Evidence Regarding a Polygraph Exam of Debra Reese was served electronically on this 15th day of October, 2004 upon: Donald E. Kinner, Esq. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Attorney for Defendant s/ Paul W. Killian ________________________ Paul W. Killian

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